Bills would close mental-health law loophole Bills would give private patients legal recourse.

March 04, 1991|By Laura Lippman | Laura Lippman,Evening Sun Staff

A woman was admitted to a psychiatric unit in a private Maryland hospital. Although she was a voluntary patient, she was locked in seclusion for 17 hours and given psychotropic drugs without her consent. She was never informed of her rights as a patient.

What is her recourse under current state law? Virtually none, say the supporters of Maryland House and Senate bills that would close this odd loophole in the law.

Tomorrow, the Senate Finance Committee is to hear testimony on SB 500, which is supported by advocates for the mentally ill and the Maryland Department of Health and Mental Hygiene.

Judy Jacobson, an attorney with the Maryland Disability Law Center, Inc., says a bureaucratic Catch 22 has for seven years undermined the state's attempts to police the treatment of mental-health patients in private facilities.

According to Jacobson, a law was passed in 1984 -- "Rights of Mentally Ill Individuals in Facilities" -- that was intended to outline basic rights such as access to visitors and protection from unnecessary physical restraints or locked-door seclusion.

The law was supposed to be backed up by the state's accreditation of hospitals, which is overseen by the health department. But under state law, the health department uses a private body for the accreditation of hospitals, the Joint Commission on Accreditation of Hospital Organizations, which is Illinois.

Once a hospital is accredited, Jacobson said, there is no provision for the state to investigate unless the facility is found to be in non-compliance with the commission's standards. "We've looked at JCAHO standards and they have nothing to do with this," she said.

In other words, if the commission does not specify mental-health rights as being part of a hospital's accreditation standards, a complaint about such issues would go nowhere.

That's what happened to the woman who was drugged without her consent. The licensing and certification division of the state health department dismissed the complaint.

The Maryland attorney general's office supported that decision, noting in a letter dated Jan. 20, 1990, that "under state law, accredited hospitals are subject to departmental inspection 'only for the purpose of complaint investigation' [as relevant to JCAHO's standards]."

The health department has no objection to the new bills, which would introduce language allowing the state to close the loophole that keeps hospitals accredited by the commission from being subject to mental-health law enforcement. Pamela Schumacher, a spokeswoman for the commission, said the measures would not affect that body.

"The laws do vary from state to state. It's entirely up to them," Schumacher said.

Jacobson said that if the law is changed, she does not anticipate a flood of complaints. In investigating the problems with the law, the Disability Law Center has found very few cases in which patients' basic rights were ignored or violated.

"In trying to figure out how big the problem is, our impression is it's not," Jacobson said. "We would not be filing dozens of lawsuits."